Ellis v. Fortner
| Citation | 169 N.E.3d 987 |
| Decision Date | 31 March 2021 |
| Docket Number | No. 28992,28992 |
| Parties | Gavin ELLIS, etc., et al., Appellees v. Laura Kenny FORTNER, M.D., et al., Appellants |
| Court | United States Court of Appeals (Ohio) |
DECISION AND JOURNAL ENTRY
{¶1} Laura Kenny Fortner, M.D. and Atrium OB/GYN, Inc. appeal the judgment of the Summit County Court of Common Pleas in favor of G.E., a minor, by and through his parents, Matthew and Lisa Ellis. We affirm.
{¶2} The Ellises initiated a medical malpractice action in 2016 based upon events occurring during the labor and delivery of their son, G.E., in April 2001. Dr. Fortner, a physician employed by Atrium OB/GYN, Inc., provided medical care to Lisa Ellis at that time. Both Dr. Fortner and Atrium OB/GYN, Inc. ("collectively "the Atrium Group") were named as defendants.
{¶3} During labor and delivery, the descent of the fetus through the birth canal progressed slowly. After several hours, delivery was attempted using a vacuum extractor
, which was unsuccessful. Dr. Fortner subsequently used a pair of Tucker-McLane forceps to extricate the baby from the birth canal. Upon delivery, the baby had an Apgar score of one, indicating severe depression that required resuscitation. The baby's head exhibited a substantial caput, or swelling underneath the scalp, and bruising. G.E. was diagnosed with hypoxic ischemic encephalopathy
("HIE") and neonatal seizures.
{¶4} The Ellises alleged that Dr. Fortner was negligent and deviated from the accepted standards of care during labor and delivery, and that as result, G.E. sustained permanent structural brain damage resulting in developmental and cognitive impairments. The Ellises contended that Dr. Fortner failed to correctly evaluate the size and position of the fetus, failed to appreciate the need for a caesarian section
, and failed to properly advise the Ellises as to the viability of a caesarian birth. At trial, a jury found in favor of the Ellises on their claim for medical negligence, with the trial court subsequently entering judgment. The Atrium Group now appeals raising nine assignments of error.
{¶5} In their first assignment of error, the Atrium Group argues the trial court erred in denying its Daubert motion to exclude testimony of proximate cause premised upon cranial compression ischemic encephalopathy
("CCIE") because it failed to conduct an evidentiary hearing and because CCIE theory failed all four reliability factors set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We disagree.
{¶6} "In evaluating the reliability of scientific evidence, several factors are to be considered: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance." Miller v. Bike Athletic Co. , 80 Ohio St.3d 607, 611, 687 N.E.2d 735 (1998), citing Daubert at 593–594, 113 S.Ct. 2786. "Nevertheless, the foregoing ‘list of specific factors neither necessarily nor exclusively applies to all experts or in every case.’ " State v. Jackson , 9th Dist. Summit Nos. 27132, 27200, 27133, and 27158, 2015-Ohio-5246, 2015 WL 9048666, ¶ 53, quoting Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The test of reliability is "flexible," and the trial court may, at its discretion, consider the factors to the extent relevant." Id. , citing State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 118. "The Ohio Supreme Court has cautioned that ‘the reliability requirement * * * should not be used to exclude all evidence of questionable reliability * * *.’ " Id. , quoting Miller at 614, 687 N.E.2d 735. "A trial court's role in determining whether an expert's testimony is admissible under Evid.R. 702(C) focuses on whether the opinion is based upon scientifically valid principles, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial." Miller at paragraph one of the syllabus.
{¶7} "[A] trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co., Ltd. at 152, 119 S.Ct. 1167. Consequently, "[t]he determination of the admissibility of expert testimony is within the discretion of the trial court." Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the abuse of discretion standard, this Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶8} According to the Ellises’ expert, Dr. Barry Schifrin, CCIE was coined by himself and colleagues to denote the mechanical contribution to hypoxic-ischemic injury that occurs with the failure of fetal compensatory mechanisms to handle an interference with cerebral perfusion. The Atrium Group argues that CCIE has not been tested, has not been the subject of peer review, and has not gained general acceptance in the medical community, but rather, is consistently rejected by the medical community. The Atrium Group contends that not only did the trial court abuse its discretion in denying their Daubert motion, but that the trial court's failure to conduct a hearing constituted prejudicial error.
{¶9} To the extent that the Atrium Group argues that a trial court must hold a Daubert hearing prior to the testimony of an expert, the law does not support that argument. See Sliwinski v. St. Edwards , 9th Dist. Summit 27247, 2014-Ohio-4655, 2014 WL 5358284, ¶ 15. "The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable." (Emphasis omitted.) Id. , quoting Kumho Tire Co. at 152, 119 S.Ct. 1167. Furthermore, in denying the Atrium Group's request for an oral hearing, the trial court noted that both the Ellises and the Atrium Group had submitted voluminous material on the subject and that the Atrium Group had failed to point to any specific or additional evidence it intended to offer.
{¶10} In its fourteen-page entry denying the Atrium Group's motion to exclude CCIE causation testimony, the trial court addressed each of the factors set forth in Daubert , examining the arguments set forth by both the Atrium Group and the Ellises in their briefs to the court. In this assignment of error, the Atrium Group raises those same arguments, but offers no explanation of why it believes the trial court's analysis was in error.
{¶11} The Atrium Group first argues that CCIE has not been tested. In addressing this argument, the trial court recognized the difficulty in testing human fetuses due to ethical considerations and noted that similar testing had been done on animals. The trial court also noted that in his affidavit, Dr. Schifrin had cited "to extensive evidence and literature demonstrating ‘that intracranial pressure is high enough to impair cerebral blood flow during contractions and that adequate rest between uterine contractions is essential to protect the fetal brain from hypoxic-ischemic insults during labor’ and that ‘excessive uterine activity is injurious to the fetal brain.’ "
{¶12} The Atrium Group's second argument is that CCIE has never been the subject of peer review. Although there was evidence to support this argument, the trial court recognized that "the principles underlying the CCIE theory have been subject to peer review[,]" noting several areas of research identified by Dr. Schifrin in his affidavit. As to the third Daubert factor, the Atrium Group argues that there is no potential rate of error for studies on CCIE. In recognizing that it was not disputed that there was no known potential rate of error, the trial court correctly noted that this absence was not dispositive on the inquiry. See Terry v. Caputo , 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 25.
{¶13} The Atrium Group next argues that CCIE has not been generally accepted by the medical community. In addressing this argument, the trial court specifically acknowledged statements made by the American College of Obstetricians and Gynecologists ("ACOG") that CCIE had not gained general acceptance, but also acknowledged that its opinion was not completely unbiased because the ACOG had a concern with the effect that CCIE would have on the cost of medical services, and was not simply concerned with scientific principles. The trial court likewise acknowledged that the Ellises had pointed to a number of articles supporting the general theory that excessive intrauterine pressure and mechanical forces used during extraction can cause brain injury
.
{¶14} Importantly, the trial court further pointed to the testimony of Dr. Schifrin that although the term "CCIE" was only coined in recent years, the principles associated with the process, namely the notion of mechanical trauma causing injury to the fetal brain, have been accepted for centuries, and that there is universal agreement that trauma to the fetal head and brain during labor and delivery can cause injury. The trial court also referenced the testimony of Dr. Stephen Glass, noting that although the phraseology for cranial compression may be new, the actual process has been described in medicine for the last...
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... ... under Daubert ... ECF No. 137 at 7 (emphasis in the ... original) (citing Ellis v. Fortner , 169 N.E.3d 987, ... 995 (Ohio Ct. of App. 2021). The Court is not bound by the ... decisions of other trial courts ... ...